June 13, 2010

Bifurcation: Not Always a Corporate Defendant’s Best-Friend

By: Dr. Shelley Spiecker

Yesterday I received a call from a client seeking argument strategies for a punitive damages presentation in a bifurcated personal injury lawsuit.After discussing argument approaches, I shared with him what I consider to be the single most important piece of advice for any attorney defending a company in a bifurcated trial today – educate jurors at the outset of the trial that the case is bifurcated and that they will deliberate on punitive damages should their initial verdict trigger the punitive phase.

True, research confirms that bifurcation makes it less likely jurors will find against a defendant on liability[1] and causation.However, when jurors deliberate punitive damages in bifurcated trials in which they are unaware during the compensatory phase that they will be given the opportunity to award punitive damages, they augment the amount they award in compensatories[2], are more likely to award punitives when that phase comes, and their punitive damage awards are higher compared to when they are aware of the potential for a punitive phase[3].

Bifurcation typically results in higher compensatory damage awards because jurors put all their damages “eggs” in the compensatory basket, not knowing they get a second bite at the apple.In addition, some jurors are angered that punitive damages evidence was “concealed” from them during the compensatory liability portion of the trial, and presentation of punitives evidence immediately prior to jurors’ punitive deliberations augments the recency and salience of this evidence.Most importantly, defense-oriented jurors’ deliberation influence in exercising award restraint is typically weakeneddue to “compromising” in the compensatory deliberation phase.

The next time you find yourself in a bifurcated proceeding, acknowledge the elephant in the room by talking about punitive damages in voir dire, or at a minimum getting your judge to pre-instruct jurors that the case is bifurcated.